World Journal Weekly Q & A - August 20, 2006
Q & A 1. 2. 3.
4.
Q&A 1.
Is Hearing Loss Enough of a Physical Disability to Exempt From
The Regular Naturalization Test; and The Physical Presence Requirement
Reader Li asks:
I have two Immigration questions:
1. I have green card for ten years and am currently 80 years old.
Because of hearing problem (I have doctor’s approval letter),
could I request for a Chinese test on Naturalization?
2. Even though I have green card for 10 years but I only stay in
U.S. for over half year from 2000 to 2005. And the total dates that
I stayed in U.S. were two years and six months. Could I apply for
citizenship?
Below are the days that I stayed in U.S. for the past 6 years:
06/26/2000 – 12/01/2000 : a total of five months and six
days
07/16/2001 – 01/14/2002 : a total of 6 months (with 2 days
short)
06/10/2002 – 12/14/2002 : a total of six months
05/11/2003 – 01/02/2004 : a total of seven months and twenty
days
06/07/2004 – 03/07/2005 : a total of nine months
Total : two years and nine months
Dear reader:
1 The usual response by U.S.C.I.S. for hearing problems is that
it will provide a sign language interpreter or give the individual
a written test. I do not believe that a hearing problem without
more will be sufficient to request an exemption from the English
test.
2 Looking at the list of times that you have been in the U.S.,
you appear to have fulfilled the physical residence requirement
for naturalization. Even though any absence from the United States
on a trip for six months and over presumptively breaks the period
of residence for naturalization purposes, that is a rebuttable presumption
and is usually overcome at the time of interview with a good reason
for the trip lasting longer than six months. In addition, your trips
prior to August 2001 would not count in the equation as they would
have occurred over five years prior to your filing. Assuming that
you have been in the U.S. for most of the time since the last date
that you provided, March 2005, the question of physical residence
should be answered favorably on your behalf.
Q&A 2.
Can a Person Entering Illegally (Instead of Overstaying a Visa)
Get The Green Card by Marrying a U.S. Citizen or Permanent Resident?
Reader Chen asks:
I came to U.S. in 1999 and met a boyfriend. We did not get married
but had a baby. Later we separated from each other. Then I met my
husband and he has green card. We were married in May 2006.
My questions are:
1. I sneaked in to the U.S. without being arrested. Could my husband
apply for me now? Or do I have to wait until he becomes a U.S. citizen?
2. If he can apply for me, what documents do I need? Do I need
to leave the country or if I can be interviewed in the U.S., how
long will it take?
3. Does my child (with ex-boyfriend) help my case? My husband has
two children and he was never married before. Will it affect my
case?
Dear reader:
1 Under present law, you are not eligible to adjust status in the
U.S. even if your husband becomes a U.S. citizen unless you qualify
under section 245(i). That provision allows individuals physically
present in the U.S. on 12/21/00 who filed labor certification based
applications or immigrant visa petitions by April 30, 2001, to adjust
status in the U.S. even though illegal upon payment of a fine amount
to U.S.C.I.S. (presently $1,000). If you are not able to adjust
status in the U.S., you would also face difficulties in attempting
to consular process your case overseas as you would be barred under
the law for 10 years because you remained in the U.S. illegally
for one year after April 1, 1997. There is the possibility that
you may obtain relief under the comprehensive immigration reform
bill. However, at this time, it is unknown whether the bill will
pass and if it does, what its final contents will be. It is presently
being hotly contested through summer public hearings in selected
cities instead of in rational negotiations by the House and the
Senate.
2 See answer one as to the conditions that you will have to fulfill
to adjust status to permanent residence in the States. If you are
able to do such, you are allowed to file the entire package of I-130
relative petition and I-485 adjustment of status application to
permanent residence concurrently to the National Benefits Center
at the lockbox in Chicago. Documentation would include marriage
certificate, proof of termination of all prior marriages of both
you and your husband, proof of his U.S. citizenship, and your proof
of birth. You should further provide an affidavit of support with
attachments by your husband, your medical examination, 2 photos
each of you and your husband (passport size and according to U.S.C.I.S.
specifications), proof of entitlement to section 245(i) benefits,
and copy of passport .
3 Your having a child with your ex-boyfriend will not help your
immigration case as there may be some question as to whether your
present marriage is bona fide. The best solution if your case can
ultimately be done through marriage is for you and your present
husband to have a child of your own. If not, you should assemble
and keep all evidence throughout the years of your marriage that
you and your husband are physically living together.
Q&A 3.
Processing Issues with Adjustment of Status to LPR from K-1 Status
Reader from Tampa asks:
I came to U.S. in April 2004 holding K1 visa. In May, 2004, I married
this U.S. citizen and applied for green card in July 2004. In August
2004, I received the receipt but my last name was misspelled. I
wrote a letter to Immigration for correction but as of now there
was no response.
In January 2005, I received a letter (again with the misspelled
last name) from Immigration, asking to submit additional documents
within 87 days : I-129F approval notice and birth certificate.
Will Immigration notify me for an interview after I submit those
documents?
Dear reader:
Marriage based cases must all be interviewed by U.S.C.I.S. before
a favorable decision can be rendered. You would undoubtedly receive
a notice of interview after the submission of further documentation.
A look at the processing time chart for the Tampa U.S.C.I.S. office
as of July 17, 2006, reveals that it is processing I-485 applications
for permanent residence which were submitted by May 15, 2005, well
over the time that you submitted your adjustment of status application.
I suggest that if you have not yet received a notice of interview,
you or your representative should begin checking with both the Tampa
local office and the National Benefits Center in Missouri concerning
the processing of your case.
Q&A 4.
Refused Entry Where Visa Normally Not Required – Steps to
Take
Web Reader asks:
I have a friend who has a Canada passport. She wanted to come to
New York to visit couple days ago. However, the officer in Toronto
Airport refused to issue her a visitor’s visa. What should
she do next?
Dear reader:
Your friend undoubtedly attempted to enter the U.S. without a visa
by using her Canadian passport, which she is entitled to do under
the law. (Under a treaty between the United States and Canada, Canadians
are allowed to enter the U.S. as B-1 business visitors or B-2 tourists
without having to present visas). The U.S. Customs and Border Protection
officer in Toronto did not admit her under pre flight inspection
and although the reason for refusal is not clear from your letter,
the usual reason is that he/she is not convinced that the applicant
for entry is a bonafide visitor. Assuming that that was the reason,
your friend can make an appointment at an American consulate or
embassy in Canada and make a formal application for a visitor's
visa to the States. If and when she obtains such, she can again
attempt to enter the U.S.. The prior refusal would count for less
to an immigration inspector where the individual has subsequently
obtained a visa from an American consulate or embassy.
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